Context & Objective: The fundamental issue addressed is the ownership of accretions (Namāʾāt) derived from the subject matter of a sale (Mabīʿ) when that subject matter is destroyed before delivery (Qabḍ) to the buyer under Islamic law. The core conflict arises because while the contract of sale (Bāyʿ) is tmalīkī (possessory) meaning ownership transfers upon contract formation the governing legal rule dictates that if the Mabīʿ is destroyed before delivery the contract is annulled (Infisākh) and the loss is borne by the seller (Bāyiʿ). This situation complicates the application of primary legal principles such as “Al-Kharāj bi al-Ḍamān” (profits follow liability). The research purpose is to analyze the legal and jurisprudential effects of the rule “Talf al-Mabīʿ Qabla al-Qabḍ fa huwa min māl bā’i‘ih” particularly concerning its relationship with the possessory nature of the sale contract and to determine the correct rule governing the ownership of the associated accretions. The central research question asks whether the rule regarding destruction before delivery constitutes an exception to the primary legal rules of contract formation.
Method & Approach: This article employs a doctrinal review and analysis of the jurists’ opinions and doctrine examining the concept scope and basis of the rule concerning the destruction of the subject matter before delivery. The methodology seeks to find a principle that is consistent with jurisprudential rules and aligns with customary fairness (Inṣāf) and transactional practice. The analysis delves into the three main theoretical positions concerning the compatibility or conflict between the possessory nature of the contract and the rule of destruction before delivery exploring concepts such as the role of delivery (Qabḍ) as a condition for the perfection (Kamāl) of ownership and the application of the rule “Al-Kharāj bi al-Ḍamān”.
Findings: The analysis reveals that the rule of destruction before delivery places the liability (Ḍamān) for the lost asset on the seller. In the context of accretions, the rule "Al-Kharāj bi al-Ḍamān" which links profits to liability is found to be in complete harmony with the destruction rule. Since the seller bears the loss and is deemed the owner for the purposes of the rule the accretions (Namāʾāt) resulting from the asset between the contract date and annulment must logically belong to the seller. This outcome is further supported by referencing the principle of Muwāzanah (balance in commutative contracts) and the necessity of referring to the ‘operative sale’. The operative sale theory based on the primacy of existence in creditable affairs dictates that since the asset cannot be delivered the foundational exchange did not occur and the profits should revert to the seller to avoid the unjust enrichment of the buyer.
Conclusion: The most logical and jurisprudentially sound conclusion consistent with custom and fairness is that the accretions (Namāʾāt) belong to the seller. The destruction of the Mabīʿ before delivery necessitates the annulment of the sale contract which results in the return of the subject matter and subsequently its profits to the seller who bore the liability. This principle is encapsulated in the juristic maxim that where restitution of the lost asset is impossible, the profits must still be restored to the seller. The rule “Talf al-Mabīʿ Qabla al-Qabḍ fa huwa min māl bā’i‘ih” effectively signals the seller’s implicit ownership thereby confirming that profits generated from the contract date until its dissolution belong to the seller.